[Congressional Record Volume 165, Number 37 (Thursday, February 28, 2019)]
[Senate]
[Pages S1600-S1602]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. UDALL (for himself, Ms. Collins, Mrs. Shaheen, and Ms. 
        Murkowski):
  S.J. Res. 10. A joint resolution relating to a national emergency 
declared by the President on February 15, 2019; to the Committee on 
Armed Services.
  Mr. UDALL. Thank you for the recognition, Madam President.
  Today I rise to call on this body to defend the Constitution, to 
protect the separation of powers, and to safeguard Congress's role as a 
coequal branch of government.
  Today I am introducing a bipartisan resolution with my Senate 
colleagues to terminate the President's declaration of a national 
emergency to build his border wall.
  My partners in this effort include Senator Collins, who is with me 
today. She will be here momentarily. Also partners are Senator 
Murkowski and Senator Shaheen.
  I just want to say to Senator Collins that I commend her on her 
principled stance and on standing up for the Constitution.
  The vote we will take on this resolution is historic. This is no 
longer about the President's wall. This is not about party. This is not 
about protecting the very heart of our American system. This is about 
protecting the very heart of our American system of governance.
  Congress--and only Congress--holds the power of the purse. Article I, 
section 9 of the Constitution clearly states: ``No Money shall be drawn 
from the Treasury, but in Consequence of Appropriations made by Law.'' 
The Constitution is absolutely clear.
  Congress's power to make spending decisions is very clear. There is 
no ambiguity. Deciding how to spend public funds is among our most 
fundamental powers and responsibilities under the Constitution. The 
Founders gave this power to the legislative body, not the executive, to 
ensure there is a broad support for how public funds are spent.
  Consequential and far-reaching decisions about spending taxpayer 
money are not left to one person, not even the President.
  This body has rejected the President's request to give him $5.7 
billion for his wall along the southern border with Mexico. On February 
14, not 2 weeks ago, we passed the Consolidated Appropriations Act of 
2019 by a vote of 83 to 16. That compromise bill did not include the 
$5.7 billion the President wanted to build his wall.
  Whether you believe Congress should fund the President's wall is not 
at issue. This is a question about the strength of the rule of law in 
this country and about the separation of powers, which forms the 
foundation of our American government.
  The President's declaration of a national emergency is an end-run 
around Congress's power to appropriate--plain and simple. To quote 
Senator Collins, the President is ``usurping congressional authority.''
  We are the representatives of the people. The people do not want to 
spend $5.7 billion on the President's wall, and we must protect their 
will.
  Let's be clear. This emergency declaration has serious implications 
for States all across the country. To build this wall, the White House 
will raid $3.6 billion from the Department of Defense's military 
construction budget and $2.5 billion from that Department's drug 
interdiction program, but the White House apparently failed to realize 
there are only about $80 million in the drug interdiction account. So 
we should be prepared for a raid on other accounts or taking even more 
from military construction funding.
  These are military construction funds that Congress already has 
appropriated for specific projects necessary to support the national 
security priorities of the United States. I am privileged to serve on 
the Appropriations Committee. I understand the hard and careful work 
that goes into these funding decisions.
  From my home State of New Mexico, Congress allocated some $85 million 
to construct a formal training unit at Holloman Air Force Base in the 
south-central part of New Mexico for unmanned aerial vehicles. This 
investment in technology tracks terrorists

[[Page S1601]]

and protects our national security. We allocated $40 million to the 
White Sands Missile Range to build an information systems facility 
badly needed for next-generation research and development activities at 
the range. Both of these projects were vetted over several years and 
deemed important to our national security.
  New Mexico is not alone. Many States' military bases and regional 
economies will be impacted. Colorado, for example, is at risk of losing 
almost $100 million for construction projects at Fort Carson near 
Colorado Springs. Ohio risks $61 million for the first installment for 
building at the National Air and Space Intelligence Center at Wright-
Patterson Air Force Base.
  Military construction projects totaling $210 million are at risk in 
Florida, $520 million in Texas, $81 million in Utah, and the list goes 
on and on. Projects in every corner of the country will be impacted.
  According to the 1976 Senate report from the National Emergencies 
Act, the President's emergency power may ``be utilized only when actual 
emergencies exist.'' As a border Senator, I am here to tell you that 
there is no actual national security emergency at our southern border 
necessitating a massive wall along the southern border, as this body 
has already determined. This is a matter where the President and 
Congress have disagreed and the President is trying to overrule 
Congress by fiat.
  A bipartisan group of 58 former national security officials are 
sounding the alarm. They write: ``Under no plausible assessment of the 
evidence is there a national emergency today that entitles the 
president to tap into funds appropriated for other purposes to build a 
wall at the southern border.''
  The evidence speaks for itself. The number of border apprehensions 
has decreased dramatically. Since the early 2000s, southern border 
apprehensions have dropped 81 percent. The number of apprehensions at 
the end of fiscal year 2017 was the lowest it has been since 1971--a 
46-year low. We have the lowest number of undocumented immigrants in 
our country that we have had in over a decade.
  The Pew Research Center estimated recently that the total number of 
undocumented immigrants residing in the United States is far less than 
since 2004. That is a 14-year low. And more people emigrate to Mexico 
from the United States than immigrate from Mexico to here. That is 
right. We have a negative net migration rate with Mexico.
  I am one of the four States that border Mexico--one of the four 
States that will be the most directly affected by a wall. I know for an 
absolute fact that there is no national security emergency along my 
State's border with Mexico. It is quite the opposite.
  New Mexico's border communities are thriving. International commerce 
is thriving. Our multicultural communities are thriving. Crime rates 
are low.
  A wall like the President wants would be disastrous for a State like 
New Mexico. It will seize away private property and carve up family 
ranches, farms, and homesteads. It will harm the beautiful but fragile 
environment there on the border.
  Again, whether you support the President's wall is not at issue on 
this vote. As Senator Tillis put it in an op-ed in the Washington Post, 
``I support President Trump's vision on border security. But I would 
vote against the emergency.''
  Another Senate Republican Senator recently said, ``Congress has been 
ceding far too much power to the executive branch for decades. We 
should use this moment as an opportunity to start taking power back.''
  Over 20 former Republican Senators and Representatives were compelled 
to pen a letter opposing the emergency declaration. They state: ``It 
has always been a Republican fundamental principle that no matter how 
strong our policy preferences, no matter how deep our loyalties to 
presidents and party leaders, in order to remain a constitutional 
republic we must act within the borders of the Constitution.''
  The time to act is now. Litigation has been filed, but Congress 
should resolve the issue of our own constitutional authority and not 
wait for the courts.
  Let me repeat. The vote we will take will be historic. It is 
imperative that all of us--Republican and Democrat--protect and defend 
our Constitution and that we protect and defend the checks and balances 
that unequivocally place the power of the purse with Congress and that 
we affirm our powers--powers that are separate from the President's.
  Our oath is to uphold the Constitution, and the Constitution is 
clear. The Constitution does not empower the President to raid money by 
decree just because Congress has already said no.
  I will vote to terminate the President's declaration of the national 
emergency to build his wall, and I will urge everyone in this Chamber 
to protect our constitutional prerogative and to do so as well.
  Ms. COLLINS. Mr. President, I rise today to speak on the resolution 
that I am joining Senator Udall in introducing. It would reverse the 
President's ill-advised decision to declare a national emergency and 
commandeer funding provided for other purposes by Congress and instead 
redirect it to construct a wall on our southern border.
  I thank Senator Udall for his leadership and also recognize the 
support we have received from our cosponsors, Senator Murkowski and 
Senator Shaheen.
  Let me be clear. The question before us is not whether to support or 
oppose the wall. It is not whether to support or oppose President 
Trump. Rather, it is this: Do we want the executive branch now or in 
the future to hold a power that the Founders deliberately entrusted to 
Congress?
  It has been said that Congress's most precious power is the power of 
the purse set out in plain language in article I, section 9 of our 
Constitution. It reads as follows: ``No money shall be drawn from the 
Treasury but in consequence of Appropriations made by law.''
  Alexander Hamilton, in Federalist 72, made clear the Founders' view 
that only the legislative branch commands this power, not the judiciary 
and not the executive. James Madison, in Federalist 58, called the 
power of the purse ``the most complete and effectual weapon with which 
any constitution can arm the [ . . . ] representatives of the people.''
  Congress's power was jealously guarded in the early days of our 
Republic. No less an authority on our constitutional framework than 
Supreme Court Justice Joseph Story, in his famous ``Commentaries,'' 
explained that ``[i]f it were otherwise, the executive would possess an 
unbounded power over the public purse of the nation, and might apply 
all its monied resources at his pleasure.''
  Throughout our history, the courts have consistently held that ``only 
Congress is empowered by the Constitution to adopt laws directing 
monies to be spent from the U.S. treasury.''
  I strongly support protecting the institutional prerogatives of the 
U.S. Senate and the system of checks and balances that is central to 
the structure of our government.
  I support funding for better border security, including physical 
barriers where they make sense. I understand the President is 
disappointed that the funding he requested did not pass, but the 
failure of Congress to pass funding in the amount the President prefers 
cannot become an excuse for the President to usurp the powers of the 
legislative branch.
  This is not the first time I have made this argument against 
Executive overreach. In 2015, I authored the Immigration Rule of Law 
Act, legislation that would have provided a statutory basis for the 
Dreamer population, while rolling back President Obama's 2014 Executive 
orders expanding that program.
  As I explained at the time, even though I supported comprehensive 
immigration reform and was disappointed that it had not passed, I 
rejected the notion that its failure could serve as the justification 
for President Obama to implement by Executive fiat that which Congress 
had refused to pass, regardless of the wisdom of Congress's decision.
  I would now like to turn to a discussion of the National Emergencies 
Act. This act was passed in 1976 to standardize the process by which 
the President can invoke national emergency powers and Congress can 
terminate the declaration through a joint resolution such as the one we 
are introducing today.

[[Page S1602]]

  The act is procedural in nature. It lays out the process the 
President must follow to declare a national emergency but does not 
provide the President with any additional powers. Instead, it requires 
the President to specify where, in existing law, he has been granted 
the authority for the powers he intends to exercise.
  By itself, the National Emergencies Act does not give the President 
the power to repurpose billions of dollars to build a wall. The 
President must look elsewhere for that authority.
  In his declaration, the President cites the authority provided by 
title 10, section 2808 of the U.S. Code, which relates to 
``Construction authority in the event of a declaration of war or 
national emergency.'' But that authorization applies only to ``military 
construction projects'' that are ``necessary to support [the] use of 
the armed forces.'' I do not believe this provision can be fairly read 
to bootstrap the presence of troops along the southern border into the 
authority to build a wall as a military construction project.
  The question isn't whether the President can act in an emergency but 
whether he can do so in a manner that would undermine the congressional 
power of the purse.
  Here, I think we need a better understanding of what should qualify 
as an emergency. One place we could turn is to a five-part test 
originally developed by the Office of Management and Budget in 1991, 
under former President George Herbert Walker Bush, to determine whether 
requested funding merited an ``emergency spending'' designation under 
our budget rules.
  Under that test, a spending request was designated as an 
``emergency'' only if all five of the following conditions were met:
  First, expenditures had to be necessary; second, the need had to be 
sudden, coming into being quickly, not building up over time; third, 
the need had to be urgent; fourth, the need had to be unforeseen; and 
fifth, the need could not be permanent.
  I raise this test only by way of analogy, but it is fair to say that 
whether or not you agree with the President that more should be done to 
secure the southern border--and I do agree with the President's goal--
his decision to fund a border wall through a national emergency 
declaration would not pass this five-part test.
  The President's declaration also has practical implications for the 
military construction appropriations process, as my colleague has 
pointed out.
  Last year, in testimony before the Appropriations Committee, the 
Department of Defense said that the President's budget request for 
military construction funding was crucial to support our national 
defense, including construction projects to improve military readiness 
and increase the lethality of the force. This includes missile defense, 
improved facilities in Europe to deter Russian aggression, and 
infrastructure to operationalize the F-35 stealth fighter.
  This also included several important efforts at the Portsmouth Naval 
Shipyard in Maine that are vital to the Navy conducting timely 
maintenance and refueling of our Nation's submarines. Shifting funding 
away from these vital projects is shortsighted and could have very real 
national security implications.
  We must defend Congress's institutional powers, as the Founders hoped 
we would, even when doing so is inconvenient or goes against the 
outcome we might prefer.
  The gridlock we have experienced on difficult issues like border 
security and immigration reform is not simply a failure to get our work 
done but a reflection of the fact that we have yet to reach a 
consensus.
  The President's emergency declaration is ill-advised precisely 
because it attempts to shortcut the process of checks and balances by 
usurping Congress's authority. This resolution blocks that overreach, 
and I hope, regardless of our colleague's position on the construction 
of the border wall, that we will join together to assert Congress's 
constitutional authority in the appropriations process.
  I urge our colleagues to support this important resolution.
  Mr. UDALL. Would the Senator yield?
  Ms. COLLINS. I would be happy to.
  Mr. UDALL. I just want to say, because we have both been here for a 
bit talking on the floor about this, I want to thank Senator Collins 
for standing up for principle. I want to thank her for standing up for 
our Constitution. It is a real honor to join her in this resolution of 
disapproval.
  I also, as she just did, thank the two other Senators who are joining 
us, Senator Murkowski and Senator Shaheen. I thank the Senator very 
much.
  Ms. COLLINS. Mr. President, I would thank the Senator for his 
gracious comments. As always, it has been a great pleasure to work with 
him, and I know he cares deeply about the constitutional principle that 
brings us to the floor today. Let us defend the Constitution.

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